Platte City, MO Cable Services Franchise Requirements

Unlawful To Operate Without A Franchise. It shall be unlawful for any person to construct, operate or maintain a cable system or to provide cable service or other competing multichannel video services, including OVS, in the City without a franchise authorizing the same, unless applicable Federal or State law prohibits the City's enforcement of such a requirement. Any such person shall be subject to a fine of five hundred dollars ($500.00) per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this code to the fullest extent allowed by law including, but not limited to, the payment of a cable franchise fee. This Section shall not apply to a cable franchisee who has submitted a proposal for renewal of its franchise unless the proposal has been denied by a final and unappealable decision.

Nature Of Rights Granted By Any Cable Franchise. Cable franchises shall not convey title, equitable or legal, in the rights-of-way and shall give only the right to occupy the rights-of-way for the purposes of providing cable services and cable Internet services. No franchise shall grant the right to use facilities owned or controlled by the City or a third (3rd) party without the consent of such party, nor shall a franchise excuse cable franchisee from obtaining appropriate access or attachment agreements before locating its facilities on the facilities owned or controlled by the City or a third (3rd) party. To the extent not inconsistent with this code, all franchises shall be deemed to incorporate and be limited by the provisions of this code and shall create rights for the sole and exclusive use of franchisee. Any franchise or other authorization for cable services, in whatever form granted, shall not grant or include:

Any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City, including the provision of communications services;

Any permit, agreement or authorization required in connection with operations in the rights-of-way including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, for excavating or performing other work in or along the rights-of-way.

Franchise Not Exclusive.

Any cable franchise granted by the City shall be non-exclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system or any component thereof to any other person including itself, as it deems appropriate, subject to this code and applicable Federal and State law.

The terms and conditions of any cable franchises granted or renewed after the effective date of this Chapter shall be, when taken as a whole, no less burdensome or more beneficial than any other cable franchises granted or renewed subject to this Chapter, when taking into consideration and where reasonably warranted, the situation that existed at the time in which the earlier terms were adopted. Provided however, that nothing herein shall be construed as requiring the use of identical terms or conditions, or limit the enforceability of conditions that are freely negotiated.

Further provided, nothing in this Subsection shall create any remedy other than that which is provided for herein, nor shall it be deemed to create any cause of action or claim of breach for any party.

Before granting an additional cable franchise, the City shall give written notice to every existing cable franchisee of any proposal to serve all or part of existing cable franchisee's franchise area, specifying the date, time and place at which the City will hold a public hearing on the application for an additional franchise. In the event that an existing cable franchisee believes that the City has entered into an additional cable franchise with terms or provisions that are, taken as a whole, more favorable or less burdensome than the terms set forth in its franchise, taking into consideration, where reasonably warranted, the situation that existed at the time in which the different provisions were adopted, the City shall, upon request by such existing cable franchisee, enter into good faith negotiations with the existing cable franchisee to modify the cable franchisee's franchise.

Franchise Territory. Every cable franchise shall apply to the entire territorial area of the City as it exists now or may later be configured unless the specific franchise agreement provides otherwise.

Federal, State And City Jurisdiction.

This code shall be construed in a manner consistent with all applicable Federal and State laws.

In the event that the Federal or State Government discontinues pre-emption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, City may, if it so elects, adopt rules and regulations in these areas to the extent not inconsistent with applicable law and the reasonable exercise of the City's Police powers.

The provisions of this code shall apply to all cable franchises granted or renewed after or simultaneously with the effective date of this Chapter. This code shall also apply to all existing cable franchises, to the extent not inconsistent with the terms of any such franchise or applicable law. A cable franchise, whether entered into before or after the enactment of this code, (including all of cable franchisee's particular rights, powers, protections, privileges, immunities and obligations associated therewith as the same exist on the date hereof), shall constitute a legally binding contract between the City and cable franchisee and as such cannot be amended, modified or changed by the grantor without the consent of cable franchisee in any manner whatsoever, whether by ordinance, rule, regulation or otherwise. In the event of any conflict between the terms and conditions of a cable franchise and the provisions of this code and other generally applicable regulatory ordinances of the City, the specific terms of the franchise shall control; provided however, that nothing herein contained shall preclude the City from the proper exercise of its Police powers.

In the event of a change in State or Federal law which by its terms would require the City to amend this code, the parties shall modify the existing cable franchise in a mutually agreed upon manner.

Initial Franchise Applications. Any person desiring an initial franchise for a cable system shall file an application with the City. A non-refundable application fee of one thousand dollars ($1,000.00) shall accompany the application, which shall not be considered or credited against the collection of applicable cable franchise fees. The application fee shall be used to defray out-of-pocket expenses incurred by the City in connection with processing the application. If any portion of the application fee is not required to defray said out-of-pocket costs, such unused portion shall be refunded to the applicant.

Consideration Of Initial Applications. Upon receipt of any application for an initial franchise, the City Administrator shall prepare a report and make his/her recommendations respecting such application to the Board of Aldermen.

Franchise Renewal. Cable franchise renewals shall be in accordance with applicable law. The City and a cable franchisee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

Grant Of Additional Franchise And Competing Service. The City may issue competing cable franchises in the City. The Governing Body of the City shall order publication of a notice in an official City newspaper of a hearing to afford the public in the franchise area, including other rights-of-way users, as well as the public at large, an opportunity to comment on the proposed franchise. In considering whether to grant one (1) or more additional franchises, the City may consider the following issues:

The positive and/or negative impact of an additional cable franchise on the community.

The ability and willingness of the specific applicant in question to provide cable services to the entire franchise area which is served by the existing cable franchisee. The purpose of this Subsection is to ensure that any competition which may occur among cable franchisees will be on terms which when taken as a whole do not give a competitive advantage to one cable franchisee over another.

The amount of time it will take the applicant to complete construction of the proposed cable system and activate cable service in the entire franchise area; and whether the applicant can complete construction and activation of its cable system in a timely manner.

The financial capabilities of the applicant and its guaranteed commitment to make the necessary investment to erect, maintain and operate the proposed cable system for the duration of the franchise term. In order to ensure that any prospective cable franchisee does have the requisite current financial capabilities, the City may request equity and debt financing commitment letters, current financial statements, bonds, letters of credit or other documentation to demonstrate to the City's satisfaction that the requisite funds to construct and operate the proposed cable system are available.

The quality and technical reliability of the proposed cable system, based upon the applicant's plan of construction and the method of distribution of signals, and the applicant's technical qualifications to construct and operate such cable system.

The experience of the applicant in the erection, maintenance and operation of a cable system.

The capacity of the rights-of-way to accommodate one (1) or more additional cable systems and the potential disruption of those rights-of-way and private property that may occur if one (1) or more additional franchises are granted.

The disruption of the availability of cable service within the City.

Such other information as the City may deem appropriate to be considered prior to granting any competing or overlapping franchise.

Permits For Non-Franchised Entities. The City may issue a license to a person other than the cable franchisee to permit that person to traverse any portion of a cable franchisee's cable franchise area within the City in order to provide cable service outside, but not within the City. Such license or easement, absent a grant of a cable franchise in accordance with this Chapter, shall not authorize nor permit said person to provide cable service of any type to any home or place of business within the City.

Section 620.110 General Requirements.

[Ord. No. 1283 §1(900.205), 1-16-2003]

Recovery Of Processing Costs And Expenses.

During the term of a franchise, if the franchisee initiates a request for approval regarding the transfer of a franchise or change in control of the franchisee except to an affiliate, the franchisee shall reimburse the City for all reasonable out-of-pocket costs, including attorneys' and consultants' fees and costs, incurred by the City as part of City's reasonable review and processing of franchisee's request, up to a maximum amount not to exceed ten thousand dollars ($10,000.00) per request for approval. Payments of such costs and expenses shall not be deemed to be "franchise fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. Section 542) and such payments shall not be deemed to be:

Payments in kind or any involuntary payments chargeable against the compensation to be paid to the City by franchisee; or

Part of the voluntary compensation to be paid to the City by franchisee.

To aid in the analysis and resolution of any future disputed matters relative to a franchise agreement or MCSR ordinance or MCSR ordinance, the City and franchisee may, by mutual agreement (both as to whether to hire and whom to hire), employ the services of technical, financial or legal consultants as mediators. All expenses incurred by the City and/or the franchisee in this regard shall be borne by the party incurring same, except as otherwise provided herein.

Liability Insurance.

Upon the effective date of a franchise agreement, the franchisee shall, at its sole expense, take out and maintain during the life of a franchise commercial general liability insurance with a company licensed to do business in the State of Missouri with a rating by Best of not less than "A" that shall protect the franchisee, the City and the City's Officials, Officers and employees from claims which may arise from operations under a franchise, whether such operations are by the franchisee, its officers, directors, employees and agents or any subcontractors of franchisee. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property resulting from all franchisee operations, products, services or use of automobiles or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be two million dollars ($2,000,000.00) combined single limit coverage and evidence of excess coverage. The following endorsements shall attach to the liability policy:

The policy shall cover personal injury as well as bodily injury.

The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage.

Broad form property damage liability shall be afforded.

The City shall be named as an additional insured on the policy.

An endorsement shall be provided which states that the City is listed as an additional insured.

Standard form of cross-liability shall be afforded.

An endorsement stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section or not renewed without thirty (30) days' advance written notice of such event being given to the City Administrator.

Unless otherwise agreed to by the City through its risk manager, franchisee shall not permit any subcontractor to commence or continue work until both shall have obtained or caused to be obtained all insurance required under this Section. Said insurance shall be maintained in full force and effect until the completion of construction approval thereof by the City.

Franchisee shall obtain and maintain Workers' Compensation insurance for all franchisee's employees and in case any work is sublet, franchisee shall require any subcontractor similarly to provide Workers' Compensation insurance for all subcontractor's employees, all in compliance with State laws and to fully protect the City from any and all claims arising out of occurrences on the work. Franchisee hereby indemnifies City for any damage resulting to it from failure of either franchisee or any subcontractor to take out and maintain such insurance. Franchisee shall provide the City Administrator with a certificate of insurance indicating Workers' Compensation coverage prior to commencing construction of the system.

The City Administrator reserves the right to adjust the limit coverage requirements on the basis of changes in the Consumer Price Index over the life of the franchise or changes in the law affecting sovereign immunity. Insurance, insurance certificates and evidence of insurance are subject to review and approval of the City Administrator for compliance with these requirements.

Franchisee shall submit to City's risk manager documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named, as well as the policy with all properly executed endorsements.

Any deductible or self-insured retention must be declared to the City Administrator.

Indemnification.

Except as otherwise provided herein, franchisee shall indemnify, hold harmless, release and defend City, its officers and employees from and against any and all lawsuits, claims, actions, demands, damages, disability, losses, expenses including reasonable attorneys' fees and other defense costs or liabilities of any nature that may be asserted by any person or entity, from any cause whatsoever, including City's concurrent negligence, arising out of or in any way connected with the operations, expressly authorized herein, the exercise of the franchise pursuant to a franchise and/or the activities of franchisee, its subcontractor, employees and agents hereunder. Franchisee shall be solely responsible and save City harmless from all matters relative to payment of franchisee's employees including compliance with Social Security, withholdings, etc.

This indemnification obligation is not limited in any way by a limitation of the amount or type of damages or compensation payable by or for franchisee under Workers' Compensation, disability or other employee benefit acts, acceptance of insurance certificates required under a franchise or the terms, applicability or limitations of any insurance held by franchisee.

City does not and shall not waive any rights against franchisee which it may have by reason of this indemnification, because of the acceptance by City, or the deposit with City by franchisee, of any of the insurance policies described in a franchise.

This indemnification by franchisee shall apply to all damages and claims for damages of any kind suffered by reason of any of the operations referred to in this Section, regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages.

Franchisee shall not be required to indemnify City for damages arising solely from the negligence or malfeasance of the City or its officials, boards, commissions, agents or employees.

With respect to any claims that may be subject to franchisee's obligation to indemnify the City, franchisee shall immediately notify the City risk manager of any and all claims filed against the franchisee or City and City jointly and shall provide the City with a copy of the same. Franchisee's obligations hereunder shall be subject to the City giving the franchisee written notice of its obligation to indemnify the City within seven (7) days of City's receipt of a claim or action pursuant to this Section. If the City determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the City.

Franchisee shall indemnify, defend and hold harmless the City, its officers, agents and employees against any and all claims or challenges brought against the City with respect to the validity of the terms and conditions of a franchise grant.

The fact that franchisee carries out any activities under a franchise through independent contractors shall not constitute an avoidance of or defense to franchisee's duty of defense and indemnification under this Section.

Security Fund And Performance Bond.

At least thirty (30) days prior to the commencement of construction, franchisee shall deposit into a bank account established by the City and maintain on deposit through the term of a franchise the sum of fifty thousand dollars ($50,000.00) or provide the City with a bond in the same amount as a security ("Security Fund") for the faithful performance by it of all the provisions of a franchise and compliance with all orders, permits and directions of the City and the payment by franchisee of any claim, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the cable system. Interest on this deposit shall accrue to the franchisee. Provision shall be made to permit the City to withdraw funds (or draw against the bond) from such Security Fund as and to the extent permitted by a franchise. Franchisee shall not use such Security Fund for other purposes and shall not assign, pledge or otherwise use this Security Fund as security for any purpose.

The Security Fund may be drawn on by City for those purposes specified in Subsection (D)(1) hereof. However, prior to any draw by the City on the Security Fund, the City must notify franchisee of its intent to draw on the fund and franchisee must be given thirty (30) days to correct the situation that caused the City to issue such notice. If correction is not made within thirty (30) days of notice, City may proceed to make such correction and draw upon the Security Fund.

Within thirty (30) days after notice to franchisee that any amount has been withdrawn by the City from the Security Fund and provided franchisee has waived or failed to exercise its right to appeal said withdrawal, franchisee shall deposit a sum of money sufficient to restore such Security Fund (or bond level) to its original amount.

Franchisee shall have the right to appeal to the Governing Body for reimbursement in the event franchisee believes that the Security Fund was drawn upon improperly. Franchisee shall also have the right of judicial appeal if franchisee believes the Security Fund has not been properly drawn upon in accordance with a franchise. Any amounts the City erroneously or wrongfully withdraws from the Security Fund as determined by the judicial appeal shall be returned to franchisee with interest.

Prior to the commencement of any construction related to the building, rebuilding or upgrading of the system required under this agreement, franchisee shall execute and deliver to the City a cash deposit, performance bond or unconditional irrevocable letter of credit payable to the City in the face amount equal to two hundred thousand dollars ($200,000.00) as surety for faithful performance under the terms and conditions of the franchise agreement. If the bond is on an annual coverage basis, renewal of each succeeding year shall be submitted to the City thirty (30) days prior to the termination date of the existing bond. A surety company of recognized standing and approved by the risk manager of the City, authorized to do business in the State of Missouri, must execute the performance bond. If a letter of credit is chosen, it must be in a form acceptable and approved by the Finance Director of the City, on a bank acceptable to the City issued in favor of the City. Upon satisfactory completion of the construction, the performance bond shall be released.

Nothing herein shall be deemed a waiver of the normal permit and bonding requirements made of all contractors working within the City's rights-of-way.

Maintenance of the requisite Security Fund and performance bond shall not in any way limit the liability of the franchisee for any failure to fully perform its obligations under a franchise agreement.

Compliance With Applicable Laws And Ordinances.

Franchisee shall conform to all generally applicable laws, rules and regulations of the United States and the State of Missouri in the construction and operation of its cable system and all generally applicable rules and regulations of the FCC.

Any right, power, protection, privilege or immunity which is provided, granted or imposed on franchisee under or by virtue of the Cable Act, as it may be amended or interpreted from time to time after the date hereof, shall remain inviolate and shall be available to franchisee notwithstanding any contrary provision of a franchise and the acceptance of the terms and conditions of a franchise shall not be construed as a waiver or release by franchisee or City of any right, power, protection, privilege, immunity or obligation under the Cable Act, the laws or Constitution of the United States or the laws and Constitution of the State of Missouri.

Section 620.120 Design, Services and Capabilities.

[Ord. No. 1283 §1(900.210), 1-16-2003]

Cable System Design. Every cable franchisee shall offer cable service that meets the cable-related needs of the City and are comparable or superior to the cable services offered by the franchisee, or its affiliates, to subscribers in any other Kansas City municipal or Kansas City metropolitan area. The cable franchise shall incorporate a description of the cable franchisee's cable system including the general design and capabilities of the cable system to identify for the City how the cable system will meet the current and future cable needs of the City.

The Cable System. Every cable system shall pass by every single-family dwelling unit and multiple-family dwelling unit within the franchise area in accordance with line extension policies set forth in this Chapter. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in Section 620.140(J)(1) in this Chapter unless otherwise specified in the franchise.

Drops To Public Buildings. Unless the cable franchisee and City agree in a cable franchise agreement to terms whereby franchisee provides other alternative public services or I-net facilities to meet the cable-related needs of the City, franchisee shall provide at no charge cable services as set out in the following Subdivisions (1), (2) and (3).

Every cable franchisee shall provide installation of at least one (1) cable drop and one (1) outlet and provide monthly basic cable service, without charge, to public buildings specified by the City in the applicable franchise, where the drop does not exceed two hundred (200) feet. All accredited K-12 schools and public libraries shall also receive one (1) cable drop and one (1) outlet and monthly basic cable service at no charge, subject to the above two hundred (200) foot limit. The location of such cable drops and outlets shall be determined in cooperation with the management of the public building to which the connection is to be made. Following the City's designation of additional public building(s) to receive cable service, a cable franchisee shall complete construction of the drop and outlet within one hundred eighty (180) days if the City requests construction, weather permitting and subject to payment of the direct incremental costs of installation in excess of two hundred (200) feet. Drops and outlets that are in addition to the one (1) free drop and outlet required by this Section shall be provided by a cable franchisee at the cost of cable franchisee's direct incremental cost. Alternatively, at an institution's request, the institution may add outlets at its own expense, as long as such installation meets the cable franchisee's standards which shall be made readily available to any public entity upon request. Additional outlets and services to public buildings are subject to the applicable commercial rate.

All such cable service outlets shall not be utilized for commercial purposes. The City shall take reasonable precautions to prevent any use of a cable franchisee's cable system in any inappropriate manner or that may result in loss or damage to the cable system. Users of such outlets shall hold the cable franchisee harmless from any and all liability or claims arising out of their use of such outlets, other than for those claims arising out of improper installation or faulty equipment.

In instances where the drop line from the feeder cable to the public building, school or library exceeds two hundred (200) feet, the cable franchisee may charge for its direct incremental costs that are incurred in exceeding this length. A cable franchisee may require advance payment of this cost.

School And Library Cable Modems. Unless otherwise specified in the applicable franchise, upon activation and commercial offering of two-way cable modem service by the cable franchisee within the franchise area, such cable franchisee shall provide upon written request one (1) courtesy cable modem with cable Internet service without charge to every State accredited K-12 public school and public library in the franchise area, where the drop does not exceed two hundred (200) feet, which may constitute an element of an individual franchise I-net requirement.

Use Of Cable Franchisee's Facilities. Subject to any applicable State or Federal regulations, the City shall have the right to install and maintain, upon the poles and within the underground pipes and conduits of a cable franchisee, any wires and fixtures desired by the City for public purposes. Provided however, that:

Such use by City shall not interfere with the current or future use by cable franchisee or any pre-existing user or lessor of franchisee's facilities;

Such use by City is restricted to non-commercial public purposes; and

City takes reasonable precautions to prevent any use of cable franchisee's facilities in any manner that results in an inappropriate use thereof or any loss or damage to the cable system. For the purposes of this Subsection, "public purposes" includes, but is not limited to, the use of the structures and installations for City fire, Police, traffic, utility and/or signal systems, but not for commercial cable system purposes in competition with the cable franchisee.

Upgrade Of System. Every cable franchisee shall upgrade its cable system (herein referred to as the "system upgrade"), if required, as set forth in its respective franchise.

Emergency Alert Capability. Every cable franchisee shall at all times provide the system capabilities to comply with the FCC's emergency alert system rules and regulations. Provided, that if the FCC at some future date eliminates the current regulations, the City and cable franchisee shall mutually agree upon the applicable standard on a going forward basis.

Periodic Review. The City and any franchisee shall engage in a "periodic review" to evaluate changes in law, technology or service and reasonable procedures for mutually agreed upon modifications to the cable franchise to incorporate changes identified as desirable or necessary as a result of any such periodic review.

Closed Captioning And Descriptive Audio Service. Every cable franchisee will make audio descriptive service and closed captioning capabilities available to the extent required by State and Federal law.

Standby Power. Within twelve (12) months of activation of the system, the cable franchisee shall provide standby power generating capacity capable of providing at least twelve (12) hours of emergency supply at the cable system headend. Every cable franchisee shall maintain standby power system supplies throughout the major trunk cable networks capable of providing emergency power within the standard limits of commercially available power supply units.

Status Monitoring. Every cable franchisee shall provide an automatic status monitoring system, or a functional equivalent, when the cable system has been activated for interactive service provided that such status monitoring is technically and economically feasible.

System Capabilities.

The design and construction of every franchisee's cable system shall at the franchisee's option consist of a hybrid fiber coax (HFC) system or a very high speed digital subscriber line (VDSL) system. If franchisee deploys a HFC system, then at a minimum it will provide the capabilities of a seven hundred fifty (750) MHz hybrid fiber optic-coaxial system architecture and will begin with the effective date of a franchise and shall be completed throughout the City in accordance with the density and line extension requirements of this agreement and activated to provide services according to a construction plan and schedule developed by the franchisee and approved in advance by the City. If a VDSL system is deployed by franchisee, then a City-wide digital television system utilizing a fiber-optic infrastructure and fiber-to-the-node architecture with a capacity of not less than one point two gigabits per second (1.2 Gbps) and capable of accommodating eighty (80) standard video channels will be constructed. Additionally, the digital television system shall be suitable for providing broadband capability including Internet access via VDSL. Construction and activation of the cable system will be completed forty-two (42) months from the effective date of a franchise agreement. Franchisee shall commence construction within twelve (12) months following the effective date of a franchise. For purposes of a franchise, "substantially completed" shall mean service to all residential areas within the City having a density of twenty (20) homes per one (1) cable mile. During the construction phase of the franchise, franchisee shall comply with all customer service obligations with respect to customers whose premises are passed by portions of the franchisee's network which are fully activated, tested and available for service. In constructing and activating its cable system the franchisee shall not discriminate between different areas of the City on the basis of race, creed, religion or income level.

Each franchisee shall, at a minimum, retain such bandwidth capabilities throughout the term of a franchise. To the extent technically and economically practical, a franchisee shall progressively improve the system capabilities.

Each franchisee shall make an annual update presentation to the Governing Body regarding, at a minimum, its services and planned developments and changes, industry developments, competition and other topics reasonably requested to be included in the presentation by the City.

HDTV/ATV Conversion. Conversion to high definition television/advanced television (HDTV/ATV) formats shall occur in accordance with applicable Federal law.

Section 620.130 Institutional Network and Public Educational and Governmental Access or "PEG Access".

[Ord. No. 1283 §1(900.215), 1-16-2003]

Support For Local Cable-Related Needs.

Public, educational and governmental access.

Access channels. Each franchisee shall offer the following access channels to each of its subscribers who receive all or any part of the cable services offered on the cable system.

(1)

Public educational access. One (1) specifically designated channel for local educational access use to be administered by the public school district(s) located within the franchise area.

(2)

Local educational access. One (1) specifically designated channel for local educational access use to be administered by the public school district(s) located within the franchise area.

(3)

Government access. One (1) specifically designated channel for government access use by the City. The City shall be responsible for the oversight and programming of the government access channel. The City may jointly utilize this channel with other jurisdictions served by a common headend of the franchisee.

Remote origination. Signal input points and equipment shall be made available at least at one (1) site for live program origination on the government and local educational access channels. Each access channel shall be activated to enable the City and schools to remotely initiate and scramble programs and services. Franchisee will provide City and schools with proper formats and protocols to facilitate broadcast on government and educational access channels.

Additional access channels. In addition to the educational and government access channels described above, if desired by the City, franchisee shall make one (1) additional access channel available to the City upon request by the City for either educational, governmental or public access purposes.

Unused channels. If demand for use of the access channels does not warrant activation of all such channels, public and educational access programming may be combined on one (1) or more channels. In no case, however, shall the government access channel(s) or government programming be combined with any other use except by express written permission of the City of Platte City, Missouri, and only upon a demonstration that there is no suitable alternative capacity available on other access channels.

Interconnection.

Each franchisee shall cooperate with other cable providers in the City and the surrounding area to interconnect its network where feasible in order to facilitate shared access programming on government and local educational access channels.

The cable system shall be designed to enable cablecasting of all access or local origination channels throughout the entire City without respect to the specific cable operator.

Each franchisee shall provide other franchised cable operators within the City with a PEG feed at a mutually agreeable location.

Each franchisee and City shall jointly be responsible for coordination of technical arrangements with other cable service providers in the City and the surrounding area. The City shall utilize its best efforts to facilitate such interconnection.

Administration. Oversight and administration of the access channels, except as otherwise specified in other than the City channel, shall be originally carried out by the franchisee, however, at any time after commencement of a franchise, the City may elect to transfer responsibility for these channels to itself or a designated community access corporation (CAC).

Franchisee support for local programming. The franchisee shall provide the following support for access:

Reservation, dedication and use of all access channels required by a franchise.

Franchisee or its designee shall provide and maintain the link necessary to insert public, educational and government access programming on the subscriber network and all equipment necessary in the headend to allow quality playback that meets acceptable broadcast standards. Franchisee or its designee shall also provide cable programming transmission facilities necessary for introducing access programming onto franchisee's cable system for distribution to subscribers.

Access channel designations. Each franchisee and City will work together to assign mutually agreeable channel designations for access channels.

Governmental access rules and procedures. The use of government access channels shall be in accordance with and subject to the rules and procedures adopted by the franchisee or the City.

10.

Assistance with soliciting contributions. Once per year, if requested by the City, the franchisee shall provide its subscribers an access promotion.

11.

Technical quality. Franchisee shall maintain all access channels, including interconnected access channels, at the same level of technical quality and reliability required by the FCC's rules for residential cable television subscribers.

12.

Proof of performance testing. To ensure high quality service on access channels, copies of results of FCC proof of performance testing of the cable system shall be made available to the City throughout the term of a franchise upon request. Included in such proof of performance testing, to the extent feasible and subject to FCC rules and regulations, franchisee will designate cable system taps corresponding to each of the public buildings where programming is originated.

13.

Change in technology. In the event franchisee makes any change in the cable system and related equipment and facilities or in its signal delivery technology, which directly or indirectly affects the transmission or signal quality of PEG access services or programming, the franchisee shall at its own expense take all necessary technical steps to ensure that the capabilities of PEG access services and programming are not diminished or adversely affected by such change.

Institutional Network, Access Channels.

Every cable franchisee shall, subject to applicable law, provide or fund an institutional network or PEG access facilities or other public interest services, or some combination of the same, for use by institutional users. Such public interest requirements shall at a minimum satisfy the community need for such facilities and/or services as determined by the Governing Body for the period of the applicable franchise.

Every cable franchisee shall also provide channel capacity and support for public, educational and government access channels as specified herein. All such PEG access channels shall be available to all subscribers as part of their basic cable service. Given the on-going changes in the state of technology as of the effective date of this code, absent the express written consent of the City, franchisee shall transmit PEG access channels in the format or technology utilized to transmit all of the channels on the basic cable service tier.

Section 620.140 Technical Standards and Customer Service Practices.

[Ord. No. 1283 §1(900.220), 1-16-2003]

General Technical Standards And Customer Service Practices.

To the extent set forth herein, this code incorporates cable service technical standards and establishes customer service practices that every cable franchisee must satisfy.

Every cable franchisee shall maintain such equipment and keep such records as required to comply with all customer service and technical standards required by these regulations and other applicable laws. The cable franchisee shall at all times assist and cooperate with City in explaining, interpreting and understanding such records or reports.

Test And Compliance Procedure. Tests for a cable system shall be performed periodically in a manner so as to conform with FCC specifications. The tests may be witnessed by representatives of the City and written test reports shall be made available to the City upon request. If any test locations fail to meet the performance standards, the cable franchisee shall be required to indicate what corrective measures have been taken and shall have the site retested.

Cable System Office Hours And Telephone Availability.

Every cable franchisee shall maintain a conveniently located customer service center, which shall include a place where subscribers may pay their bills, pick up and return converter boxes and comparable items and receive information on the cable franchisee and its services. Such service center shall be open at least during normal business hours. cable franchisee shall also maintain a publicly listed toll-free or local telephone line that is available to subscribers twenty-four (24) hours a day, seven (7) days a week.

Every cable franchisee shall have trained representatives available to respond to subscriber telephone inquiries during normal business hours.

After normal business hours, the telephone access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained representative on the next business day.

Under normal operating conditions, telephone answer time by a trained customer service representative or automated response unit, including wait time, shall not exceed thirty (30) seconds when the connection is made. If a call must be transferred, transfer time shall not exceed thirty (30) seconds. Under normal operating conditions, these standards shall be met no less than ninety percent (90%) of the time, measured on a quarterly basis.

Under normal operating conditions, a cable franchisee shall establish an inbound telephone system upon which subscribers shall not receive a busy signal more than three percent (3%) of the time.

A cable franchisee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.

Service Calls And Installations. Under normal operating conditions, each of the following standards must be met no less than ninety-five percent (95%) of the time as measured on a quarterly basis:

Standard installations will be performed within fifteen (15) business days after an order has been placed. "Standard installations" are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.

The appointment window alternatives for installations, service calls and other installation activities will be either a specific time or within a maximum four (4) hour time block during normal business hours. The cable franchisee may schedule service calls and other installation activities outside of normal business hours for the express convenience of a subscriber, if so requested.

A cable franchisee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

If a cable franchisee's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber must be contacted. The appointment must be rescheduled, as necessary, at a time which is convenient for the subscriber.

Repairs And Interruptions.

Under normal operating conditions and excluding conditions beyond the control of a cable franchisee, every cable franchisee will begin working on service interruptions and outages within a reasonable time frame but in no event later than twenty-four (24) hours after the service interruption or outage becomes known. The cable franchisee must begin actions to correct other service problems on the business day following notification of such service problems.

The term "service interruption" means the loss of picture or sound on one (1) or more cable channels.

Work on service problems, excluding conditions beyond the control of a cable franchisee, must begin by the next business day after notification of the problem.

Outside repairs to cable plant which cannot be made by the initial service technician dispatched shall, under normal operating conditions, be rescheduled within the next business day after the originally scheduled service call. The subscriber does not need to be home for outside plant and line repairs.

A cable franchisee may interrupt service only for good cause and for the shortest time reasonably possible, including interruption for system upgrade, maintenance and repair. Subject to the reasonable safety precautions for the benefit of the cable franchisee's employees and agents, routine maintenance shall occur at times that affect the fewest number of subscribers, generally between Midnight and 6:00 A.M. To the extent that specific neighborhoods will be affected by a planned outage, such as during an upgrade, the cable franchisee shall provide advance notice through telephone calls, door hangers and/or other reasonable means.

Upon subscriber request a cable franchisee shall provide a credit equivalent to a pro rata of the monthly cable rate for each service interruption exceeding four (4) hours in any twenty-four (24) hour period, unless it is demonstrated that the subscriber caused the outage or the outage was planned as part of an upgrade or other work that occurred between the hours of Midnight and 6:00 A.M., of which the City and the subscriber received appropriate prior notification. A subscriber is entitled to a full refund from any disruption to a pay-per-view event. These credits and refunds shall be made available upon request by subscriber and verification by subscriber that loss has occurred describing the time, date and nature of the disruption experienced.

Technicians capable of performing service-related emergency repairs and maintenance must be available twenty-four (24) hours a day, including weekends and holidays.

No charge shall be made to a subscriber for any service call relating to cable franchisee owned and cable franchisee maintained equipment after the initial installation of cable service unless the problem giving rise to the service request can be demonstrated by cable franchisee to have been:

Caused by the negligence, malicious destruction, illegal tampering or theft of cable service or of cable equipment by the subscriber; or

A problem established as having been non-cable system or cable service in origin.

A cable franchisee may also assess a service charge for service calls in instances where the problem was not caused by the cable franchisee.

Cable drop lines, cable trunk lines and any other type of outside wiring that comprise part of a cable franchisee's cable system that are located underground shall be placed in such locations pursuant to City Code, and the surrounding ground shall be restored as close as is practical to its condition immediately prior to such underground construction activity within a reasonable period of time after connection to the cable system. Except for a cable franchisee's maintenance facilities, no cable drop line, cable trunk line or any other type of outside wiring shall be permitted to lay upon the ground for an unreasonable period of time within the City, except for the express purpose of being immediately connected to the cable system of cable franchisee. The requirements of this Subsection shall apply to all installation, reinstallation, service or repair commenced by a cable franchisee within the City during normal operating conditions.

Disconnections And Downgrades.

If any subscriber fails to pay a properly due monthly subscriber fee or any other properly due fee or charge, the cable franchisee may disconnect the subscriber's outlet; provided however, that such disconnection shall not be effected until after the later of:

Thirty (30) days after the due date of said delinquent fee or charge; or

Fifteen (15) days after delivery to subscriber of written notice of the intent to disconnect. If a subscriber pays before expiration of the later of (a) or (b), the cable franchisee shall not disconnect. Provided however, that this Section does not apply to subscribers disconnected as a result of insufficient funds.

Absent extenuating circumstances, no subscriber may be disconnected without prior written notice and the above notification of intent to disconnect in Subsection (F)(1) above shall satisfy this notice requirement. Provided however, that no such prior notification requirement shall apply to disconnections for theft of service or other violations of law.

No subscriber may be disconnected for non-payment if payment of outstanding balances is made before the scheduled date for disconnection, up to and including the last business day before the scheduled disconnection.

No subscriber may be disconnected due to a cable franchisee's failure to timely or correctly post payments.

Any disconnection requiring a cable service representative on site shall be performed at reasonable times. Any disconnection requested by the subscriber at a particular time shall be deemed "reasonable" no matter when the same occurs.

Absent extenuating circumstances, a cable franchisee is not required to reconnect a subscriber with an undisputed outstanding balance.

A cable franchisee is permitted to refuse orders for premium or "pay-per-view" services from subscribers with a record of non-payment.

A cable franchisee may disconnect subscriber premises that are responsible for signal leakage in excess of applicable Federal limits. A cable franchisee may effectuate such disconnection without advance notice, provided that a cable franchisee shall immediately notify the subscriber with door tags and/or telephone calls or other reasonable means. If the source of the signal leakage is remedied and the subscriber was not the cause of such leakage, the cable franchisee shall reconnect the subscriber at no charge. If the subscriber was the cause of the signal leakage, the cable franchisee may charge a reasonable reconnection fee. For purposes of this Section, use of FCC-approved navigation devices does not in and of itself constitute subscriber caused signal leakage.

Subscribers may request disconnection or a downgrade of cable service at any time. A cable franchisee may not impose any charge for service delivered after the requested date of disconnection. Notwithstanding the foregoing, a cable franchisee may impose a charge for service delivered after the requested date of disconnection if the terms and conditions of subscribing to such service were clearly disclosed to the subscriber at the time of subscription. As provided under Federal law, subscribers may request a downgrade at no charge if made within thirty (30) days of a rate increase.

10.

Nothing in this Chapter or code shall limit the right of a cable franchisee to reasonably deny cable service to any household or individual which has a negative credit or cable service history with the cable franchisee or another person as verified by a credit reporting agency, which may include non-payment of bills, theft or damage to the cable franchisee's or other person's equipment, outstanding balances or threats or assaults on employees of the cable franchisee in the course of their employment.

Communications Between Cable Franchisee And Subscribers.

Notifications to subscribers.

Every cable franchisee shall provide written information to subscribers on each of the following topics at the time of installation, at least annually to all subscribers and at any time upon request of a subscriber:

(1)

Products and services offered;

(2)

Prices and options for programming services and conditions of subscription to programming and other services and facilities;

(3)

Installation and service maintenance policies;

(4)

Instructions on how to use services;

(5)

Channel positions of programming offered on a system; and

(6)

Billing and complaint procedures, including the name, address and telephone number of the franchisee.

Subscribers will be given thirty (30) days' advance notice of any changes in rates, programming services or channel positions, if the change is within the control of the cable franchisee. All such notice shall be provided in writing by any reasonable means. In addition, the cable franchisee shall notify subscribers thirty (30) days in advance of any significant changes in other information required by this Section. Notwithstanding the foregoing or any provision of this code to the contrary, a cable franchisee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, cable franchise fee or any other fee, tax assessment or change of any kind imposed by any government entity on the transaction between the cable franchisee and the subscriber.

Billing.

Bills must be clear, concise and understandable. Bills must be fully itemized including, but not limited to, basic and premium service charges and equipment charges.

Bills must clearly delineate all activity during the billing period, including optional charges, rebates and credits.

In case of a billing dispute, a cable franchisee must respond to a written complaint from a subscriber within thirty (30) calendar days.

Credits for service shall be issued no later than the subscriber's next billing cycle after determination that the credit is warranted.

Late charges. A cable franchisee may impose a monthly fee for any delinquent balance owed by a subscriber, subject to the following:

At least ten (10) days before the date the fee is imposed, the subscriber shall be given written notice on the face of the bill or by separate notice of:

(1)

The date after which the fee will be imposed if the balance is not paid; and

(2)

The amount of the fee that will be imposed; and

The fee for the delinquent payment shall not exceed the State statutory maximum as may be amended from time to time.

Credits and refunds. Credit or refund checks will be issued promptly, but no later than either:

The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier.

The return of equipment supplied by the cable franchisee if cable services are terminated.

Complaint Log. Subject to the privacy provisions of 47 U.S.C. Section 521 et seq., every cable franchisee shall prepare as necessary and maintain written records of complaints made to them and the resolution of such complaints, including the date of such resolution. For purposes of this requirement, all complaints that result in the dispatch of a service technician shall be individually logged and for all other complaints the cable franchisee may satisfy this requirement by the creation of a periodic written summary of the type of complaint(s) and where appropriate their resolution. Such complaint logs and summaries shall be on file at the office of cable franchisee for three (3) years available for inspection by the City upon request.

Parental Control. Every cable franchisee shall make available to any subscriber upon request a "lockout" device, which may be included within the converter, for blocking both video and audio portions of any channel(s) of programming entering the subscriber's premises. Such device shall be provided at a reasonable charge by sale or lease. A cable franchisee may, however, require a reasonable security deposit for the use of such a device.

Line Extension Policy.

A cable franchisee may not discriminate in the build-out of its cable system to a particular area of the City or provision of cable service to individual or groups of residents on the basis of race, creed, religion or economic condition. A cable franchisee shall serve all areas of the City with populations of at least twenty (20) dwelling units per cable mile, including areas annexed subsequent to the grant of the franchise, unless otherwise provided by franchise ordinance. Such line extension requirements may be modified in a franchise such as where an franchise is granted to a prior existing cable operator located in an area annexed subsequent to the adoption of this code or such other circumstances that are sufficiently unique as determined by the Governing Body as not to create an unfair competitive advantage.

Special agreements. Nothing herein shall be construed to prevent a cable franchisee from serving areas not covered under this Section upon agreement with developers, property owners or residents.

Customer Service Reporting Requirements. The City may require, upon reasonable request, that a cable franchisee periodically furnish to City semi-annual reports and any other reasonable information relevant to the cable franchisee's compliance with the customer service requirements of this Chapter measured on a quarterly basis to the extent that the cable franchisee maintains such reports and information.

Section 620.150 Operation and Maintenance.

[Ord. No. 1283 §1(900.225), 1-16-2003]

Open Books And Records. Every cable franchisee shall cooperate with the City with respect to City's administration of this code and any applicable franchise subject to it. Subject to the privacy provisions of the Cable Act, City shall have the right to inspect, upon five (5) business days' notice, during normal business hours, all books, records, maps, plans, certified financial statements, service complaint logs, performance test results and other existing like materials of a cable franchisee that relate and are material to the operation of the cable franchisee's cable system and that are reasonably necessary to grantor's enforcement or administration of this code or the cable franchisee's franchise. A cable franchisee shall not be required to maintain any books or records for franchise compliance purposes longer than three (3) years, except that financial records necessary to demonstrate compliance with the required cable franchise fee payments shall be kept for six (6) years. Upon request, the City will treat designated information disclosed by a cable franchisee as confidential to the extent permissible under State and Federal law and will advise said cable franchisee of any third party requests for such information so that franchisee may take appropriate and authorized steps to protect its rights. All such review of a cable franchisee's books and records shall be performed by an independent party if the City itself enters into the business as a competitor.

Communications With Regulatory Agencies. Copies of all non-confidential petitions, applications, communications and reports submitted by a cable franchisee to the FCC, Securities and Exchange Commission or any other Federal or State regulatory commission or agency which directly relate to the operation of the cable system in the City shall be made available contemporaneously to the City upon request. Copies of responses from the above regulatory agencies to a cable franchisee likewise shall be made available promptly to the City upon request. If the City is specifically named in any such pleading or response, the City shall automatically be furnished a copy.

Annual Reports.

Upon request, a cable franchisee shall make available to City, within ninety (90) days of the end of each of the applicable cable franchisee's fiscal years during the term of a franchise, the following:

A revenue statement certified by a representative of the cable franchisee showing the gross revenues of the cable franchisee for the preceding fiscal year;

A current list of names and addresses of each officer and director and other management personnel of the cable franchisee;

A statement of the cable franchisee's current billing practices and charges;

A copy, if any, of the cable franchisee's current subscriber service contract; and

A copy of annual reports to stockholders, if any, for the operating company and parent company.

An index of all technical and operational reports that franchisee is required to develop and maintain in its public file with respect to its cable system pursuant to Federal law.

Other than Subsection (C)(1)(f), all of the above information shall not be required annually unless there is a change after the first (1st) filing.

City and its agents and representatives shall have authority to arrange for and conduct an audit during normal business hours of the books and records of cable franchisee that are reasonably necessary for the enforcement of a franchise. A cable franchisee shall first be given thirty (30) days' notice of the audit, the description of and purpose for the audit and a description, to the best of City's ability, of the books, records and documents that City wants to review. The costs and expense of such audit shall be borne by the cable franchisee if the audit reveals an underpayment of five percent (5%) or more.

Any review or audit of a cable franchisee's books and records shall be performed by an independent party if the City itself enters into business as a competitor to a cable franchisee. In such case, all confidential information obtained during the audit shall not be disclosed to the City or any other party.

Service Contract And Subscriber Information.

A cable franchisee shall have authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the cable franchisee to exercise its rights and perform its obligations under this Chapter and its cable franchise and to assure uninterrupted cable service to all of its subscribers; provided such rules, regulations, terms and conditions shall not be in conflict with the provisions of this code, Federal, State and/or local law or any applicable rules and regulations.

Upon request, a cable franchisee shall submit to City any standard residential subscriber contract form that it utilizes. If no written contract exists, a cable franchisee shall file with the City a document completely and concisely stating the terms of the standard residential subscriber contract offered.

Section 620.160 Construction Standards.

[Ord. No. 1283 §1(900.230), 1-16-2003]

Construction Standards.

Rights-of-way construction. Prior to commencing any construction in the City, franchisee must obtain all necessary permits and licenses required by Federal, State and City laws, ordinances and rules and pay all associated fees. Franchisee shall comply in full with the ROW ordinance, as may be and amended from time to time. A franchise agreement shall be deemed to establish supplementary requirements to the extent these requirements conflict with the ROW ordinance or Cable Services Code, the most restrictive requirements shall apply. Further, franchisee shall comply with all other applicable laws, ordinances, rules and standards relating to the construction, operation and maintenance of a cable television system.

Compliance With Laws. At a minimum and without limitation, franchisee shall adhere to all building, electrical and zoning codes currently or hereafter in force in the City. The construction, installation and maintenance of the cable system shall be effectuated by franchisee in a manner that is consistent with the laws, ordinances and construction standards of the State of Missouri, the Occupational Safety and Health Administration, the National Electrical Safety Code, National Electrical Code, FCC and the Standards of Good Engineering Practices for Measurement of Cable Television Cable Systems of the National Cable Television Association to the extent applicable, as well as all other applicable laws, rules, regulations and ordinances that may be modified or amended from time to time. All open connections on splitters, couplers and other devices shall be properly terminated.

Minimum Interference. All of franchisee's construction, installation, operation, repair and maintenance and the arrangement of its lines, cables and other appurtenances, on both public and private property, shall be conducted in such a manner as to cause minimum interference with the rights and reasonable convenience of the public and any property owners that may be affected. In the event of any such interference, the City may require the removal of franchisee's lines, cables and appurtenances from the right-of-way in question, at the sole expense of franchisee.

Repair Of Property. Franchisee shall promptly repair and restore any City or private property which may be damaged as a result of the construction, installation, operation, repair or maintenance of the cable system. Any such property damaged or destroyed shall be promptly repaired and restored by grantee, at franchisee's sole cost and expense, to its condition prior to being damaged or shall be replaced by franchisee with equivalent property.

Erection Of Poles Prohibited. Franchisee shall not erect, for any reason, any pole on or along any rights-of-way in an existing aerial utility system. Franchisee may obtain the lease of pole space and facilities from the existing utility pole owners. If additional poles in an existing aerial route are required, franchisee may negotiate with the utility for the installation of the needed poles. Any such addition shall require the advance written approval of the City.

Reservations Of Street Rights. Nothing in a franchise shall be construed to prevent the City from constructing sewers, grading, paving, repairing or altering any rights-of-way or laying down, repairing or removing water mains or constructing or establishing any other public work. All such work shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of poles, wires, conduits, conductors, pipes or appurtenances of franchisee. If any such property shall interfere with the construction or repair of any rights-of-way or public improvement, whether it be construction, repair or removal of a sewer or water main, the improvement of any rights-of-way or any other public improvement, then all such property of franchisee shall be removed or replaced in such manner as shall be directed by the City so that the same shall not interfere with the public works of the City. Such removal or replacement shall be at the expense of franchisee, except to the extent funds are made available under applicable law.

Exclusion Of Certain Locations/Facilities. Prior to its installation of any system facilities in the rights-of-way and after it provides the City with its proposed plans for the facilities, the City may in its discretion designate certain locations or facilities in the rights-of-way to be excluded from use by franchisee for its facilities including, but not limited to, ornamental or similar specially designed streets lights or other facilities or locations which, in the reasonable judgment of the City, are not appropriate for the franchisee's system facilities or any other facility or location that in the reasonable judgment of the City Engineer is incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation. The City Engineer may further exclude certain other facilities that have been designated or planned for other use or are not otherwise available for use by franchisee due to engineering, technological, proprietary, legal or other limitations or restrictions as may be reasonably determined by the City.

Location, Type And Design Of Facilities Subject To Approval. The location and nature of all facilities shall be subject to the review and approval of the City Engineer. Such review shall be based on non-discriminatory bases in application of City policy and approvals shall not be unreasonably withheld. Unless extraordinary circumstances exist, good cause shall not include authorization for above ground facilities requiring new poles. Except as provided herein, all facilities constructed after the date of this agreement shall be placed underground and in conduit, where capable, unless existing above ground structures requiring no major modification are available. Above ground pedestals, vaults, antennae or other facilities may be installed if less than sixty (60) inches above the ground or otherwise only if approved by the City where alternative underground facilities are not feasible or where underground requirements are otherwise waived pursuant to the provisions of this Subsection. Existing conduit shall be used where feasible and available. Where reasonable and appropriate and where adequate public rights-of-way exist, the franchisee shall place above ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City provided that such placement is practical, efficient and economically feasible. Unless specifically authorized herein or otherwise by the City, wired access point antennae/towers located on the rights-of-way or other City owned or controlled property shall not be authorized by a franchise, but shall require a separate lease or use agreement with the City. City height limitations, applicable zoning restrictions and general City policy with regard to all users of the rights-of-way shall also be applicable to all facilities.

Notification, Joint Installation And Collocation Requirements. Franchisee shall, prior to any excavation or installation within the rights-of-way, provide sufficient notification and joint installation opportunity on a shared-cost basis to potential users of the rights-of-way as may be provided for by separate City policy. Such notification and adopted policies shall be designed to maximize collocation of providers, to minimize the disturbance to the rights-of-way and maximize its useable capacity. Franchisee shall further make its installed facilities available to other franchisees on a non-discriminatory competitively neutral basis consistent with the requirements of Federal law.

Aerial Drop Lines. For subscribers requesting connection requiring a drop in excess of one hundred twenty-five (125) feet, franchisee shall extend cable service at a rate not to exceed franchisee's actual direct incremental cost of installation from its main distribution system.

Clearing Poles And Cables. Franchisee shall have the right to remove, trim, cut and to keep clear of its poles, cables, underground conduits and related equipment the trees in and along the public streets, but in the exercise of such right, franchisee shall not cut such trees to any greater extent than is reasonably necessary for the construction, erection, installation, maintenance and use of cable system equipment. Franchisee shall compensate the City or any private owners of such trees for any damage caused by such trimming that exceeds what is allowed under City Code or permit.

Temporary Disconnections. Franchisee shall be required, at its expense, to protect, support, temporarily disconnect, relocate in or remove from, public streets, lands or places any property of franchisee whenever required by City upon reasonable written notice by reason of traffic conditions, public safety, street construction or any other public purpose. If public funds are available to any person using such street, easement or rights-of-way for the purpose of defraying the cost of any of the foregoing, upon request the City shall assist franchisee in making application for such funds.

Moving Facilities. Franchisee, on the request of the City or any person holding a building permit issued by the City or any permit issued by an appropriate State agency, shall temporarily move its wires, cables, poles or other cable system facilities to permit the moving of large objects, vehicles, buildings or other structures. The expense of such temporary moves shall be paid to franchisee by the person requesting the same and franchisee shall have the authority to require such payment in advance. Franchisee shall be given not less than thirty (30) days' advance notice to arrange for such temporary moves, unless emergency conditions warrant otherwise.

Work Performed By Others.

Franchisee shall make available to the City the names and addresses of any person, other than franchisee, which performs services pursuant to this agreement; provided however, that all provisions of this agreement remain the responsibility of franchisee.

All provisions of a franchise agreement shall apply to any subcontractors or others performing any work or services pursuant to the provisions of this code on behalf of franchisee.

Safety And Mapping.

Franchisee shall at all times employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public or to employees of the franchisee.

All lines, equipment and connections in, over, under and upon the rights-of-way and private property within the City, wherever situated or located, shall at all times be kept and maintained in a safe and suitable condition and in good order and repair.

Upon completion of any construction, upgrade or rebuild, franchisee shall provide the City a copy of all strand-and-trench maps, which shall be in digital form and franchisee shall include a copy of such information in an electronic copy specified by the City Engineer in a common mapping format, along with traditional hardcopy maps.

Duty To Franchisee. Nothing contained in a franchise shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring franchisee's facilities while performing any work connected with grading, regarding or changing the line of any rights-of-way or with the construction or reconstruction of any sewer, water or utility system.

Section 620.170 Financial Provisions, Remedies, Procedures and Due Process.

[Ord. No. 1283 §1(900.235), 1-16-2003]

Annual Cable Franchise Fee.

As compensation for grant of a cable franchise and in consideration of permission to use the rights-of-way of the City for the construction, operation, maintenance and reconstruction of a cable system and to defray the costs of cable franchise obligations, every cable franchisee shall pay to the City on an annual basis throughout the term of its cable franchise, a franchise fee as set forth in the applicable franchise agreement.

Further, every cable franchisee that offers any "bundled" services shall fairly reflect as part of its calculation of applicable franchise fees an appropriate and reasonable division of services among the various services offered. The specific cost accounting for such revenue attribution shall be set out in the individual franchise or other agreement.

Payments due City under this Section shall be computed quarterly for the preceding quarter, as of March thirty-first (31st), June thirtieth (30th), September thirtieth (30th) and December thirty-first (31st). Each quarterly payment shall be due and payable no later than forty-five (45) days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report by the cable franchisee showing the basis for the computation and a "cable franchise fee worksheet" listing all of the sources of revenues attributable to the operation of the cable franchisee's system.

Should any additional monies be due to the City as a result of information contained in the annual financial report of a cable franchisee or by audit as permitted by this Chapter, the cable franchisee shall pay such additional monies to the City within sixty (60) days after receipt of notice of same from the City.

In the event that any of the quarterly cable franchise fee payments are not timely made, a cable franchisee shall also pay the City interest thereon at the then-current prime rate. Said interest to be applied commencing with the forty-fifth (45th) day after the end of the quarter and continuing until all such overdue sums (including interest) are paid.

No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further sums payable under the provisions of this Chapter, Code or applicable franchise. All amounts paid shall be subject to audit and recomputation by the City or its designee at any time upon reasonable notice and specification of the documents requested to be reviewed.

Remedies And Enforcement Procedure.

Whenever the City has reason to believe that a cable franchisee has violated any material provision of this code or its franchise, including the customer service and telephone availability requirements, the City shall first notify the cable franchisee in writing of the violation and demand correction within a reasonable time which shall not be less than thirty (30) days. If the cable franchisee fails to demonstrate to the reasonable satisfaction of the City that no violation exists, or if the cable franchisee fails to correct the violation within the time prescribed, or if the cable franchisee is unable to correct the violation and fails to commence corrective action within the time prescribed and to diligently remedy such violation thereafter, the cable franchisee shall then be given written notice of a public hearing to be held before the Board of Aldermen. Said notice shall indicate with reasonable specificity the violation alleged to have occurred. This procedure shall apply to all alleged code or cable franchise violations, including those in which grounds for revocation are considered.

At the public hearing, the Board of Aldermen shall hear and consider all relevant evidence and thereafter render written findings and a written decision based upon the evidence.

In the event the cable franchisee has corrected the violation or promptly commenced correction of such violation after notice thereof from the City and is diligently proceeding to fully remedy the violation or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

In the event that a violation exists and that the cable franchisee has not corrected the same in a satisfactory manner or did not promptly commence and diligently proceed to correct the violation, the City may impose penalties and/or liquidated damages from the Security Fund, as follows:

For system construction schedule violations including, but not limited to, provisions relating to initial construction schedules and system upgrade construction schedule, five hundred dollars ($500.00) per day of non-compliance;

For all other violations, two hundred fifty dollars ($250.00) per day per violation.

The City shall provide the cable franchisee with written notice of its decision together with a written finding of fact explaining the basis for such a decision.

In the event that a cable franchise is cancelled or terminated by reason of the default of the cable franchisee, the Security Fund deposited pursuant to the cable franchise shall remain in effect and available to the City until all pending claims or penalties are resolved or settled, after which point any remaining amounts in the Security Fund shall revert to the possession of the cable franchisee.

The rights reserved to the City with respect to the Security Fund are in addition to all other rights of City, whether reserved by this code, applicable cable franchise, or authorized by law, and no action, proceeding or exercise of a right with respect to such Security Fund shall affect any other right City may have.

The foregoing provisions shall not be deemed to preclude the City from obtaining any other available remedies for repeated violations.

Grounds For Revocation. In addition to any rights in this code or applicable franchise, the City reserves the right to revoke a franchise and all rights and privileges pertaining thereto, in the event that any of the following occur and the City and a cable franchisee are not able to mutually agree upon a cure or alternate remedy:

The cable franchisee substantially violates any material provision of this code or its franchise;

The cable franchisee practices an act of fraud or deceit upon the City; or

The cable franchisee becomes insolvent or is adjudged bankrupt.

Right Of Appeal.

Upon the imposition of a penalty or revocation decision, a cable franchisee shall have a period of thirty (30) days subsequent to the date of the formal adoption of the decision by the Board of Aldermen within which to file an appeal with a court of competent jurisdiction.

During any such appeal period, the cable franchise shall remain in full force and effect.

Section 620.180 Foreclosure, Receivership and Abandonment.

[Ord. No. 1283 §1(900.240), 1-16-2003]

Foreclosure. Upon the foreclosure or other judicial sale of all or a part of a cable system or upon the termination of any lease covering all or part of a cable system, a cable franchisee shall notify the City of such fact and such notification shall be treated as a notification that a change in control of the cable franchisee has taken place and the provisions of this code governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred.

Receivership. The City shall have the right to cancel a cable franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of a cable franchisee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days or unless:

Within one hundred twenty (120) days after its election or appointment, the receiver or trustee has fully complied with all the provisions of the cable franchise and remedied all defaults thereunder; and

Such receiver or trustee, within said one hundred twenty (120) days, has executed an agreement, duly approved by a court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this code and applicable cable franchise.

Section 620.190 Purchase of System.

[Ord. No. 1283 §1(900.245), 1-16-2003]

If a renewal or extension of a cable franchise is denied without further right of appeal or a cable franchise is lawfully terminated with all rights of appeal exhausted, the City may acquire ownership of the cable system or effect a transfer of ownership of the cable system to another person and any such acquisition or transfer shall be in accordance with and to the extent permitted by 47 U.S.C. Section 547 as it exists now or may be amended.

Section 620.200 Sale or Transfer of Cable Franchise.

[Ord. No. 1283 §1(900.250), 1-16-2003]

A cable franchisee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, an ownership interest in or control of a cable franchise or cable system without the prior consent of the City, which consent shall not be unreasonably withheld.

Within thirty (30) days of a franchisee carrying any communications service for a reseller of any communications services through franchisee's facilities, franchisee shall notify City of the name and address of such reseller, the reseller rates or tariffs to be paid to franchisee relating to such reseller and provide to City any written commitment which exists as to the payment of use fees for the revenues attributable to such reseller.

The following events shall be deemed to be a sale, assignment or other transfer of an interest in or control of a cable franchise or cable system requiring compliance with this Section:

The sale, assignment or other transfer of all or a majority of a cable franchisee's cable system assets in the City;

The sale, assignment or other transfer of capital stock or partnership, membership or other equity interests in a cable franchisee by one (1) or more of its existing shareholders, partners, members or other equity owners so as to create a new controlling interest in cable franchisee;

The issuance of additional capital stock or partnership membership or other equity interest by a cable franchisee so as to create a new controlling interest in a cable franchisee; and

A cable franchisee's agreement to transfer management or operation of the cable franchisee or the system to an unaffiliated entity so as to create a new controlling interest in the cable franchisee. The term "controlling interest", as used herein, means majority equity ownership of a cable franchisee.

A transfer solely for security purposes such as the grant of a mortgage or security interest, including the pledge or grant of a mortgage or security interest to lenders of a cable franchisee's assets including, but not limited to, the cable franchise, such as in a transaction commonly known as an "initial public offering", shall not be deemed to be a sale, assignment or other transfer of an interest in or control of a cable franchise or cable system and thus shall not require compliance with this Section.

In any case where Federal law requires the consent of the City to any sale or transfer of ownership of an interest in or control of a cable franchise or cable system, the City shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and the requirements of this code. If the City fails to render a final decision on the request within one hundred twenty (120) days after receipt by the City of all required information, such request shall be deemed denied unless the requesting party and the City agree to an extension of the one hundred twenty (120) day period.

The City reserves any legal right it has under applicable law to require a cable franchisee to pay all costs and expenses incurred by the City in connection with the sale, assignment or transfer of a cable franchise including, but not limited to, the City's costs of reviewing the qualifications of any proposed transferees.

Section 620.210 Rights of Individuals Protected.

[Ord. No. 1283 §1(900.255), 1-16-2003]

Discriminatory Practices Prohibited. A cable franchisee shall not deny cable service, deny access or otherwise discriminate against subscribers, programmers or general citizens on the basis of income level, race, color, religion, national origin, sex or age. Every cable franchisee shall strictly adhere to the equal employment opportunity requirements of State and Federal laws. Every cable franchisee shall comply at all times with all other applicable Federal, State and local laws and all executive and administrative orders relating to non-discrimination.

Subscriber Privacy. Every cable franchisee shall at all times comply with the Federal subscriber privacy requirements codified at 47 U.S.C. Section 551.

Section 620.220 Miscellaneous Provisions.

[Ord. No. 1283 §1(900.260), 1-16-2003]

Rate Regulation. The City reserves the right to regulate rates for basic cable service and any other services offered over a cable system to the extent permitted by Federal or State law. A cable franchisee shall be subject to the rate regulation provisions provided for herein and those of the Federal Communications Commission (FCC) at 47 C.F.R., Part 76.933, Subpart N. The City shall follow the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part 76.933, Subpart N.

Rights Reserved To City. Upon either final non-appealable determination of non-renewal or revocation of a cable franchise, City shall have discretion to permit a cable franchisee by mutual consent to continue to operate the cable system for an extended period of time agreed upon by the parties. Any such operation of the system by a cable franchisee shall be in accordance with the terms and conditions of this code and the cable franchise shall provide the regular subscriber service and any and all of the services that may be provided at that time.